75 P. 725 | Utah | 1904
(after stating the facts).
In the case of Johnston v. Schenck, 15 Utah 490, 491, 493, 50 Pac. 921, the contract sued on in that case provided in part as follows: “If within one year from and after June 15, 1891, we, or either of us sell, convey •or transfer any interest whatever in or to said, or either •of said, lode mining claims ... or put the same into any incorporation now or hereafter organized, then we agree to repay on demand to said James Johnston, the aforesaid sum of two thousand dollars advanced to ns by him as aforesaid; otherwise such sum of two thousand dollars shall not be repaid by us to him.” Notwithstanding that in that case there is a positive declaration in the foregoing instrument that the indebtedness should not be repaid unless the property mentioned should be disposed of within a certain period of time, this court held that “the paper in question bound the defendants to repay the plaintiff the $2,000 which he loaned them at the expiration of one year from its date, unless they should sell or transfer their mining claims, or some part of them, sooner, and in that event to pay on demand; that it gave them one year to repay, or until they should sell their mining claims, within that time.”
In the case before us it appears that appellant corporation was in need of money to carry on its business, and the loans in question were made “to help it out,” and at a time when some of its other stockholders refused to make appellant company any loans whatever. Under these circumstances the only reasonable construction that can be given to the written acknowledgments under consideration is that the clause “to be repaid from the first profits of the company” was inserted for the benefit of the respondent, making his debt first in order of payment out of the profits of the company, should any be realized, and not for the purpose of enabling the appellant, after reaping the benefits derived from the loans, to avoid repaying the money in case it should derive no profits from the business in which it was engaged. When the money was loaned, the debt was created and became absolute, and the provisos in the written instrument that the money should be repaid out of the first profits of the company merely fixes the happening of such an event as a convenient time for making the payment, and in case no profit should be realized the law implies a promise to pay within a reasonable time. The construction thus given the written instruments under consideration i|3 not only in accord with our ideas of justice and fair dealing, but is in harmony with the great weight of judicial authority on this subject. De Wolfe v. French, 51 Maine 420; Noland v. Bull (Or.), 33 Pac. 983; McCarty v. Howell, 24 Ill. 342; Page v. Cook, 164 Mass. 116, 41 N. E. 115, 28 L. R. A. 759, 49 Am. St. Rep. 449; Crooker v. Holmes, 65 Maine 195, 20 Am. Rep. 687; Sears v. Wright, 24 Maine 278;
Respondent would have been entitled to a judgment on the pleadings, had he made a motion to that effect in the court below.
The judgment is affirmed, with costs.